COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
Asche C.J.(1), Martin(2) and Angel(3) JJ.
CWDS
Criminal Law - Sentence - plea of guilty - saving of public expense and
administrative inconvenience - whether appropriate basis for mitigation
Criminal Law - Sentence - consideration and discussion of mitigatory basis
of plea of guilty
Criminal Law - Sentence - discount for plea of guilty - request for judicial
guidelines and policy - sentencing discretion - individual nature of
sentencing process
Criminal Law - Sentence "Rape" - establishment of higher "benchmark" - no
evidence of prevalence - whether appropriate for court to set new "benchmark"
- NT Criminal Code S.192(1), (4)
Criminal Law - Sentence - plea of guilty - mitigation of sentence - whether
mitigation dependent upon plea indicating genuine remorse
Statutes:
NT Criminal Code
Parole of Prisoners Act
Penalties and Sentences Act 1985 Cases referred to:
Australian Coal and Shale Employers' Federation v
The Commonwealth and Ors (1953) 94 CLR 621
Davis (1980) 2 CAR(S) 168
De Haan (1967) 52 CAR 25
DPP v Ottewell (1970) AC 642
Griffiths v R (1977) 137 CLR 293
Harris v R (1967) SASR 316
Kear (1978) 2 Crim L J 40
Lintern (unreported decision of NT Court of
Criminal Appeal - 2 March 1988)
Morton (1986) 23 ACR 433
Nicholls v Bushby (unreported decision of New
South Wales Supreme Court - 1978)
Poyner v R (1986) 66 ALR 264
R v Anzac (1987) 50 NTR 6
R v Cox (1972) Qld R 125
R v Holder (1983) 3 NSWLR 245
R v Holder and Johnston (1983) 13 A Crim R 375
R v Ireland (1978) 49 NTR 10
R v Lawrence and Ors (1980) 32 ALR 72
R v Page (unreported Victorian Court of Criminal Appeal
quoted Willis in ANZ Journal of Criminology September 1985)
R v Tait (1979) 24 ALR 473
Ross (1983) 5 CAR(S) 318
Scanlon (unreported decision of NT Court of
Criminal Appeal - 20 November 1989)
Schumacher v R (1981) 3 A Crim R 441
Yardley v Betts (1979) 22 SASR 108 Cases distinguished:
R v Gray (1977) VR 225
R v Shannon (1979) 21 SASR 442 Cases not followed:
R v Harman (1989) 1 Qd R 414
R v Pickett (1986) 2 Qd R 441HRNG
DARWIN
#DATE 3:11:1989
Counsel for the Appellant: W.J. Karczewski
Solicitors for the Respondent: Solicitor for the NT
Counsel for the Respondent: S. Cox
Solicitors for the Respondent: North Australian Aboriginal
Legal Aid ServiceORDER
The Court orders that:
The appeal is allowed.
The respondent be sentenced to 7 years gaol with a non-parole period of 3
years and 3 months.
JUDGE1
This is an appeal by the Crown on the grounds that both the head sentence
and the non-parole period imposed by the learned trial judge were manifestly
inadequate.
2. The respondent pleaded guilty to one count of what I will refer to for
convenience as rape, for that is what it is, although the offence is not known
by that name in the Criminal Code of the Northern Territory. By s.192(1) a
person who assaults another with intent to have carnal knowledge is guilty of
a crime and is liable to imprisonment for 7 years. By s.192(4) if he thereby
has carnal knowledge he is liable to be imprisoned for life. The respondent's
plea was to the charge that on 16 January 1988 at Alice Springs he unlawfully
assaulted the prosecutrix with intent to have carnal knowledge and thereby had
carnal knowledge of her.
3. The sentence of the Court was that the respondent be imprisoned for 4
years and 9 months with a non-parole period of 2 years.
4. The facts as found by the learned trial judge were that on the 16th day of
January 1988 the respondent, who had been drinking, approached the victim with
a request that she drive him to an Aboriginal camp. She agreed to do so but
when she reached the Stuart Highway the respondent on various pretexts
directed her to certain dirt roads off the highway. The victim at first
complied, but became apprehensive at these changes from his original request,
and finally told him she was not prepared to drive him any further. She
alighted from her vehicle to engage the front hubs on her four-wheel drive
Toyota as there were some sandy areas in the vicinity. The respondent then
approached her from behind, grabbed her and dragged her a number of metres
from the vehicle. A struggle ensued during which she lost her shoes and
sunglasses. She tried to attract the attention of the occupants in a car
which happened to pass by and she screamed hysterically to no avail. The
presence of the other vehicle did, however, distract the respondent's
attention momentarily, and the prosecutrix managed to break free and run
towards her vehicle. The respondent ran after her and there was a further
struggle, in the course of which the respondent pulled the ignition keys from
the vehicle and discarded them in a creek bed. He then forced her to the
ground, forceably removed her briefs, raised up her dress and had sexual
intercourse with her against her will. During the assault the victim was
screaming and struggling and the respondent punched her twice in the mouth,
twice in the sides of her face and once in the chest. Her efforts to attract
the attention of passing trail bike riders were unsuccessful, but shortly
after the rape, three adults in a four wheel drive vehicle came by, and the
victim ran to them and immediately complained of the rape. The respondent ran
from the scene. The people in the vehicle took the victim to the Alice
Springs Police Station where she reported the matter. The respondent was
interviewed the following day and made full and frank admissions in relation
to the offence.
5. As a result of the assault the victim suffered a swollen and bruised top
lip, a swollen face, sore jaw and scratchings and abrasions to various parts
of her body. As so often in these cases, however, her physical injuries were
relatively minor compared to the grave psychological damage inflicted upon
her. She was a 38 year old single woman who has since suffered a range of
psychological symptoms including chronic insomnia, depression, nightmares and
a considerable level of mental and emotional distress. There has, apparently,
been some abatement of these symptoms, but it would be surprising if she has
yet fully recovered. Certainly her career prospects were jeopardised to some
extent, since part of her duties involved taking field trips throughout parts
of the Territory, and one can well understand that she no longer felt
confident to do this. However, the Crown Prosecutor informed the learned trial
Judge, and he accepted, that she was now going on field trips in the Darwin
area where she is presently based.
6. The learned trial Judge noted that the respondent had two prior
convictions (both in 1987) for exceeding .08%. I note that the blood alcohol
level on both these occasions was very high (.25% on the first and .3% on the
second). He noted, further, that in January 1986 the respondent had been
convicted of an aggravated assault and sentenced to 6 months imprisonment, to
be released after 2 months on entering into a bond to be of good behaviour for
12 months.
7. Counsel on behalf of the respondent adduced evidence from a psychiatrist
who had examined the respondent and who, in the course of his evidence,
referred to a report from the Alice Springs Hospital and to a report from a
consulting psychologist who had undertaken a psychological assessment of the
respondent. These reports were admitted without objection from the Crown.
8. The Hospital report noted that the respondent had been admitted to the
hospital in November 1986 complaining of disorientation, sore eyes and a
belief that someone was trying to kill him. A past history of heavy alcohol
consumption and petrol sniffing was noted (although the latter seems to have
ceased a long time ago - probably about 1971 - see psychologist report). He
was treated for alcoholic hallucinations and bronchitis and remained for three
days. A few days later he returned to the hospital and was treated initially
for psychoses but was later placed on anti-depressant tablets with some
success. He became increasingly anxious to leave and physically threatening
to the staff. He was discharged on 1 December 1986.
9. An earlier incident in September 1986 was noted when he was brought to the
Outpatients reception by the Police. He was found to be hyperventilating but
physically well, apart from a wound on his forearm. He was sedated on this
occasion and taken back to the Police Station.
10. The conclusions in the psychological report were reached after various
tests were administered and the conclusions are these:-
CONCLUSIONS
"The test and interview data
suggests that while David Dixon (Jabaltjari)
has a history of alcohol and substance abuse
and a report of recent head injury, there are
no signs of organic damage to be found now.
There are also past reports of associated
bizarre behaviour and possible hallucinations
which, at the time were thought to be
psychotic. Such experiences are common in
chronic alcohol abusers and may have been of
that type.
His test performance was sound but not fast and
indicated that he is probably below average for
his age group on measured intelligence.
Since being charged with this offence, he seems
to have changed his ways and says he is not
drinking alcohol at all. He expressed sincere
affection for his wife and daughters and says
that he has to stop all that 'stupid behaviour'
because he has 'family responsibilities'.
He reports he is now living with his wife and
her family which would no doubt provide him
with greater restraints and control.
If he maintains his alcohol-free lifestyle, he
should be able to steer clear of this sort of
trouble again as it was clearly carried out in
a state of disinhibition brought about by
excessive intake of alcohol."11. The psychologist also noted what I think can be fairly described as signs
of remorse, and that "he seemed to be genuine in his desire to mend his ways".
The psychologist reported the respondent's understanding that he committed the
offence while he was drunk and would not have done it had he not been drunk.
The respondent subsequently told the psychiatrist that he desired to give up
drink and return to his family.
12. The psychiatrist confirmed that the respondent seemed deeply ashamed of
what he had done. He was asked whether a combination of impaired intellectual
facilities together with the ingestion of a lot of alcohol contributed to the
offence. He said, "I'm not sure that represents a total explanation for the
occurrence of the offence, but I would certainly say that those factors made a
contribution". The psychiatrist expressed the opinion "I would not describe
him as being actually retarded, but he's close to it". He could not see signs
of psychiatric disorder, although "he gives a convincing description of grog
shakes and accompanying hallucinations ... but that passes off relatively
quickly".
13. In sentencing the respondent the learned trial Judge set out the details
of the offence and noted that the respondent had, on the day after the
offence, given a record of interview in which had made "full and frank
admissions".
14. His Honour continued:-
"The record of interview
indicates a clear account of the events in
which you were involved and it accords with the
general allegations made against
you. The significance of this is whatever
liquor you may have consumed previously, was
not sufficient to blur out your recollection of
these events because it is apparent from the
record of interview that you had a complete
comprehension of the events and a recollection of them.
In short, you simply assaulted and raped your
victim in response to her preparedness to do
you a good turn by agreeing to take you to your
vehicle. This may or may not have been a
pretext on your part, but the fact remains is
that by your telling her to go along a dirt
track in a relatively isolated spot in the
bush, you did rely upon some sort of pretext to
give effect to your lustful desires.
Your conduct was a combination of low cunning
and deliberation, and a total disregard for the
person you assaulted and raped."15. His Honour then referred to the injuries both physical and psychological
inflicted on the victim. He referred to the respondent's past convictions
noting that his background history included a previous conviction for assault
for which he had been sentenced to a term of imprisonment.
16. His Honour referred to the medical background of the respondent setting
out in detail the matters I have already referred to.
17. His Honour also said this:-
"I take into account that you
co-operated with the police, that you have a
fairly lucid account of your involvement in
this offence and made complete admissions when
spoken to by them. I also take into account
your demonstration of remorse which is
associated both with your pleas - plea of guilty
and the shame which you have demonstrated
particularly in your inability to associate now
properly in your family relationship and to use
the words submitted to me 'I can't look at my
family'."18. Finally, after referring again to the evidence of the psychiatrist, His
Honour said:-
"I add to that of course the
fact that was urged upon me by your counsel
that shame still persists in you and you have a
recognition of the dreadful offence - the crime
you have committed. I take into account that
you are intellectually impaired and the other
matters referred to in the evidence of Dr
Walton. I was asked to take into account that
there was no very serious physical violence
carried out and to the extent that by some
standards it is perhaps on the lower end of the
scale, nonetheless, you resorted to actual
violence which caused physical injury to your
victim and I do not overlook that, but at the
same time I do regard the assault as being in
the lower category rather than the higher. I
also have regard to that fact that fortunately
the victim has made a relatively good recovery
from her ordeal, although there is evidence of
persisting symptoms considering that this
offence took place about a year ago.
In any event the invasion of a woman's body by
unsolicited actions on the part of any person
must be protected by this court. I would have
been inclined but for your plea of guilty and
matters personal to you to have imposed a
penalty in the vicinity of 7 years. I mention
that in order to give full weight to the
discount of the factors which I've taken into
account. The sentence of the court is that you
be imprisoned for a period of 4 years and 9
months having taken into account the period you
have been in custody and I fix a non-parole
period of 2 years, sentenced accordingly."
The Significance of the Plea of Guilty
19. In the course of his submissions the learned Solicitor-General invited
this court to give guidance on what, if any, discount should be given from any
otherwise proper sentence for a plea of guilty. If he is asking that the
Court establish quantitative guidelines to be applied as some sort of formula
in every case I would not be disposed to do so. As was said by McInerney and
Crockett JJ. in R v Gray (1977) VR 225 at 232:
"The sentencing judge possesses
a discretion of great width. It would be
improper to seek to define or prescribe the
area in which that discretion is to operate.
It is for the judge to interpret the quality
and implications of the plea."20. But the question that the learned Solicitor-General was posing was more
aligned to the significance which should be given to a plea of guilty per se
i.e., in the absence of anything which the Court may take as a sign of remorse
or contrition.
21. It is beyond question that contrition or remorse are factors which will
usually operate in the accused's favour; but not always. The present of
remorse may be no guarantee that the prisoner will not repeat his conduct;
alternatively the factor of remorse may, in some case, be outweighed by other
factors such as the enormity of the crime or the need for retribution in the
sense adopted by Thomas - "The English Sentencing System" - 3rd Edition - p
202 of "giving wrongdoers their deserts".
22. But there are many cases in which the plea is made not necessarily out
of contrition or remorse. There has been much discussion in Australia about
this question and the various decided cases are somewhat in the balance. The
matter has been discussed at length in Courts of Criminal Appeal in New South
Wales, Victoria, South Australia and Queensland. The best starting point is
R v Shannon (1979) 21 SASR 442 because there a Full Bench of five Judges was
assembled for the express purposes of giving a definitive ruling. (See pp
242-3). The leading judgment was delivered by King C.J. His conclusions were
supported by Mohr J. Wells J., with whom Zelling J. agreed, also announced his
support for the conclusions of the learned Chief Justice (see p 445), but
nevertheless set forward his own conclusions which, on a careful analysis, may
not be precisely on all fours with what was said by the learned Chief Justice.
Cox J. was in dissent on certain basic issues.
23. At p 453 King C.J. said:-
"In my opinion this court
should now lay down the following propositions -
(1) A plea of guilty may be taken into
account in mitigation of sentence where -
(a) it results
from genuine remorse, repentance or
contrition, or
(b) it results
from a willingness to co-operate in the
administration of justice by saving the expense
and inconvenience of a trial, or the necessity
of witnesses giving evidence, or results from
some other consideration which is in the public
interest; notwithstanding that the motive, or
one of the motives, for such co-operation may
be a desire to earn leniency,
and where to allow the
plea a mitigatory effect would be conducive to
the public purposes which the sentencing judge
is seeking to achieve
(2) A plea of guilty is not
of itself a matter of mitigation where it does
not result from any of the above motives, but
only from a recognition of the inevitable, or
is entered as the means of inducing the
prosecution not to proceed with a more serious
charge.
(3) In cases falling within
(1), the judge is not bound to make a
reduction, but should consider the plea with
all the other relevant factors in arriving at a
proper sentence.
(4) In assessing the weight
to be attached to a plea of guilty as a factor
making for leniency, it is proper for the judge
to bear in mind that it is important to the
administration of justice that guilty persons
should not cause expense to the public and
delay to other cases by putting forward false
stories and on the basis of such false stories
contesting the charges against them.
(5) The above propositions
are not to be taken as weakening in any way the
principle that there may be no increase in the
sentence which is appropriate to the crime
because the offender has contested the charge."24. The basis for proposition (4) and 1(b) (insofar as it correlates with
(4)), is set out more fully in His Honour's reasons at pp 447 to 450. His
Honour refers to R v Gray and draws from it the interpretation that the case
"condemns the proposition that a judge must make a reduction in the sentence
otherwise appropriate by reason of a plea of guilty but affirms that he may do
so. It condemns the proposition that a plea of guilty is a mitigating factor
only insofar as it is evidence of genuine remorse and affirms that a reduction
is justified by facts other than remorse "that operate in the public
interest", such as saving a prosecutrix the ordeal of giving evidence and
saving the State a lengthy and expensive trial".
25. One would have no quarrel in taking into account the factor of saving the
prosecutrix the ordeal of giving evidence. But I would not be prepared to
take into account, in the accused's favour, the mere fact that his plea saved
the expense of a public trial. Their Honours McInerney and Crockett JJ. in R v
Gray did not, in my view, say this so baldly; although they seem, with
respect, to have been a little ambiguous. At p 232 they say:
"There may be cases in which
the only sorrow felt by him is in the fact that
he has been detected. But, having been
detected, he has had to do the best he can for
himself. Weighing the strength of a possible
defence against the likely penalty upon
conviction he may elect deliberately to adopt a
course which involves a measure of public
utility in the belief that his own ultimate
interest is best served by doing so. The judge
may (not shall)
take such circumstance into account in the
accused's favour. If such action be tainted
over much by self-interest it probably will not
avail the accused. Professor Sir Rupert Cross
in his book The English Sentencing System
(1971), p 153 suggests that it is in the
interest of the present judicial system that
provided they are in fact guilty, accused
persons should plead guilty. No doubt great
cost to the community in time, convenience and
money is thereby saved. However expedient this
may be from the point of view of the executive,
it is not a matter which requires the
sentencing judge to reduce the sentence below
that which he otherwise believes to be proper
in the circumstances."26. Just how the Court can determine whether a plea is or is not "tainted
over much by self interest" would, in my respectful view, be difficult to
establish, where the plea is not to be regarded as evidencing remorse. There
would seem to be a heavy element of self interest in any such situation.
27. King C.J. also referred to a passage in "Cross - The English Sentencing
System", 2nd Edition (1975) at p 105 and I note that what is said there
includes this passage:
"From time to time suggestions
are made that our system of criminal trials
would break down if everyone charged with an
offence in the Crown court would plead not
guilty, and, in any event, the beneficial
effect of saving the expense and inconvenience
of a protracted and unnecessary trial is
something which cannot be ignored. Provided it
is clearly understood to refer only to those
who are guilty, moderate encouragement to plead
is, as the Court of Appeal put it in de Haan,
"clearly in the public interest."
King C.J. comments on this passage at p 448 in Shannon:
"The public interest in saving
the expense of trial has been increased by the
pressures on the legal aid system. The
resources available for legal aid are severely
strained by the number and length of criminal
trials. In many cases these trials and the
consequent depletion of legal aid funds are
brought about by guilty persons contesting
their guilt by means of false stories. The
volume of criminal business has placed the
court system under stress and has resulted in
unfortunate delays in bringing accused persons
to trial. Congestion is greatly contributed to
by offenders who put forward false stories and
make use of legal aid in an effort to escape
conviction. The growth in the importance of
these factors points, in my opinion, to the
desirability of providing some encouragement to
guilty persons to admit their guilt."
With respect I would agree with the comments made by Cox J. in Shannon. He
was of the view that "the notion that a defendant should, or may, gain credit
from a plea of guilty merely because he will thereby be saving the authorities
the trouble and expense of a trial and relieving some pressure on the Court's
time", ran contrary to directions previously propounded by the South
Australian Courts in Harris (1967) SASR 316; Tiddy (1969) SASR 328; and
Rowland (1971) SASR 392. Cox J. then observed (at p 457 in Shannon),
"Two principles relevant to
this subject are well established. First, a
convicted person is not to be given a longer
sentence merely because he pleaded not guilty.
There are sound policy reasons for that rule,
and no one suggests that it should be
disturbed. Secondly, the court may take into
account contrition or remorse shown by a
defendant and manifested, perhaps, by his plea
of guilty. To take that principle further, on
grounds of sheer expediency, is, in my opinion,